May 15, 2018 / 7:43 PM / 2 months ago

Arkansas judge bars TV ads attacking state Supreme Court justice. Is that constitutional?

(Reuters) - On Monday, Circuit Judge Doug Martin of Fayetteville, Arkansas, granted a temporary restraining order to Arkansas State Supreme Court Justice Courtney Goodson, who is running for reelection. The order bars local television stations from airing an attack ad on Goodson by the deeply conservative Judicial Crisis Network. Judge Martin concluded that Justice Goodson, who sued a half-dozen television stations in Fayetteville and Little Rock on Monday, was likely to prevail on her allegations that the JCN ads were defamatory. Because early voting is already underway in the judicial election, Judge Martin said, Justice Goodson will suffer irreparable harm if the ads continue to run until Election Day on May 22.

It’s easy to understand Justice Goodson’s frustrations with the Judicial Crisis Network. The group opposed her 2016 campaign to become Arkansas’ chief justice, and she counts JCN’s “dark money” as a significant factor in her loss to Dan Kemp. In the current campaign, Judicial Crisis Network has spent more than a half-million dollars on an advertising blitz against Goodson and another Arkansas justice running for reelection, according to the Arkansas Democrat-Gazette.

On May 3, Justice Goodson’s campaign filed a complaint against JCN with the Arkansas Judicial Campaign Conduct and Education Committee, an independent nonprofit charged with assuring the integrity of judicial elections in the state. Justice Goodson said JCN had falsely accused her of accepting hundreds of thousands of dollars in donations and perks from law firms with business before the Arkansas Supreme Court and of asking for an $18,000 pay raise that would make her salary bigger than the state governor’s.

A week later, the judicial election integrity group concluded JCN’s attack ads were false and misleading. (JCN did not respond to the group’s invitation to defend its ads.) The independent group said that Justice Goodson had recused herself from cases involving donors so, contrary to JCN’s claims, her contributors received no benefit from her seat on the court. As the group explained, the pay raise issue is a bit more complicated, since Justice Goodson was on the state Supreme Court when justices voted to authorize the chief justice to request a pay raise. The votes of each justice are confidential. But the judicial election integrity group said there is “no evidence to support the statement that (Goodson) did request a pay raise … The Supreme Court speaks with one voice and that voice is the voice of its Chief.”

The group issued a harshly worded cease and desist order demanding the withdrawal of Judicial Crisis Network television ads and mailed flyers against Justice Goodson. “JCN’s disregard for fair or truthful advertising impugns the integrity of the judicial election process,” the independent group said.

The ads, nevertheless, continued to air, despite warning letters to television station executives from Goodson’s lawyers at LaCerra Dickson Hoover & Rogers. So on Monday, Goodson and her campaign sued the stations and asked for a restraining order against broadcast of the ads. Judge Martin granted the TRO before the stations sued in Fayetteville – local stations of Tribune Broadcasting, Cox Media and Nexstar Media – even entered an appearance in the case. Pulaski County Circuit Court Judge Chris Piazza of Little Rock has scheduled a hearing Friday on the restraining order.

Here’s the problem with Justice Goodson’s litigation to shut down the public broadcast of ads deemed to be false and defamatory: The restraining orders she wants are almost certainly unconstitutional prior restraints, according to First Amendment expert Eugene Volokh of UCLA. In a post Monday night at The Volokh Conspiracy, the law prof said an injunction issued before a judgment on the merits of a defamation claim “is a clearly unconstitutional ‘prior restraint,’ and violates the First Amendment,” Volokh wrote. “Here, there was no trial, no ‘final determination’ and no ‘decision on the merits’— just a temporary restraining order presumably based (in relevant part) on a conclusion that the plaintiff showed a ‘likelihood of success on the merits.’ That is no basis for restricting speech, even for a few days, especially (but only) criticism of a high government official during an election campaign.”

So what is a candidate in Justice Goodson’s pickle supposed to do? She already believes, based on her TRO motion, that JCN ads may have cost her the chief justice job in 2016. She followed the rules and obtained a declaration from the judicial integrity group that the current JCN ads are false and misleading. Yet the ads are still on television, attempting to sway voters against Justice Goodson’s reelection.

The only constitutional answer, Volokh told me in an interview on Tuesday, is for candidates to run their own ads countering their opponents’ supposedly false claims. Volokh said he could understand why a trial court colleague might sympathize with Justice Goodson, but Judge Martin’s ex parte order was not the right reaction.

“The only remedy, in the moment, is to speak out,” he said. More speech may not always cure bad speech, Volokh said, but it’s the best of the imperfect options available to the targets of political attack ads. He cited U.S. Supreme Court Justice Louis Brandeis’ concurrence in 1927’s Whitney v. California (47 S.Ct. 641), which encapsulates the premise far more eloquently than I could ever hope to do: “ If there be time to expose through discussion the falsehood and fallacies, to avert the evil by the processes of education, the remedy to be applied is more speech, not enforced silence.”

In an email response to my query about the constitutionality of the TRO, Goodson counsel Lauren Hoover said libelous speech is not protected under the First Amendment. “I understand the questions surrounding a prior restraint, but we are happy to have received the TRO and are prepared to meet our burden on the merits when we have those opportunities,” she wrote.

I reached out to the three companies affected by the restraining order to see if they intend to challenge it. A Tribune Broadcasting representative declined to comment. Nexstar did not respond to a phone message and Cox did not respond to a message sent through its corporate website. As of Tuesday afternoon, the broadcasters still hadn’t appeared in the docket of the Fayetteville case.

Judicial Crisis Network’s spokeswoman did not answer my email requesting comment on the Goodson ad or the TRO.

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